Ayishabi and others (LRS of petitioners) v. P.P. Vasu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **TUESDAY, THE 29TH DAY OF MAY 2012/8TH JYAISHTA 1934** **RCRev..No. 440 of 2011 ( )** **-------------------------RCA.103/2005 OF RENT CONTROL APPELLATE AUTHORITY/III ADDL. DISTRICT COURT, KOZHIKODE RCP.114/2004 OF ADDL. MUNSIFF COURT, KOZHIKODE-II ----------------** ## **PETITIONERS / RESPONDENTS / LRS OF PETITIONER :** **-------------------------------------------------------------------------------** **1. AYISHABI, W/O. K.E. ABOOBACKER, AGED 71 YEARS NEROTH, PERUMANNA AMSOM & DESOM,** **KOZHIKODE TALUK,** **2. KOLOLATH RAMLA, W/O. K.E. ABOOBACKER, AGED 59 YEARS VELLAYIKODE AMSOM & DESOM** **KOZHIKODE TALUK,** **3. K.E.N KUNHAHAMMED, S/O. K.E. ABOOBACKER, AGED 52 YEARS, PERUMANNA AMSOM & DESOM,** **KOZHIKODE TALUK,** **4. NEROTH MUHAMMED BASHEER,** **S/O. K.E. ABOOBACKER,AGED 49 YEARS PERUMANNA AMSOM & DESOM, KOZHIKODE TALUK** **5. NEROTH SAKEER, S/O. K.E. ABOOBACKER,** **AGED 47 YEARS, NEROTH, PERUMANNA AMSOM & DESOM, KOZHIKODE TALUK** **6. NEROTH RAMLATH,** - **D/O. K.E. ABOOBACKER, AGED 45 YEARS PERUMANNA AMSOM & DESOM, KOZHIKODE TALUK** **7. NEROTH SUHARA,** - **D/O. K.E. ABOOBACKER, AGED 43 YEARS PERUMANNA AMSOM & DESOM, KOZHIKODE TALUK** **8. KOLLOLATH HANNATH,** - **D/O. K.E. ABOOBACKER, AGED 24 YEARS** **VELLAYIKODE AMSOM & DESOM, KOZHIKODE TALUK** **...2/-** **RCRev..No. 440 of 2011 ( ) -2-** **9. KOLLOLATH MUHAMMED SHAFFI,** **S/O. K.E. ABOOBACKER, AGED 24 YEARS VELLAYIKODE AMSOM & DESOM, KOZHIDODE TALUK** **BY ADVS.SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.J.ABHILASH** ## **RESPONDENT / APPELLANT / RESPONDENT :** **------------------------------------------------------------------** ## **P.P.VASU,** **S/O.KELU, AGED 71 YEARS, PADINHARE PARAKKOTTU POYIL PURAKKATTIRI, POST THALAKULATHUR PERUMANNA, KOZHIKODE DISTRICT.** **BY ADV. SRI. S. NIRMAL** **THIS RENT CONTROL REVISION HAVING BEEN FINALLY HEARD ON 29-05-2012, ALONG WITH RCR. 460/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Mn** ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------RCR. Nos. 440 & 460 of 2011 ----------------------------------------------Dated this the 29th day of May, 2012 ## **O R D E R** ## **Pius C.Kuriakose, J.** RCR 460/2011 is filed by the tenant and RCR 440/11 is filed by the landladies. These RCRs are directed against the common judgment in RCA.103/05 filed by the tenant and memorandum of Cross Objections in RCA 103/05 filed by the landlords against the order of the Rent Control Court in RCP.114/04. RCP.114/04 was originally filed by the landlord as Original Suit No.260/96 before the Munsiff Court and later pursuant to the direction of this Court in _Edger Ferus v. Abraham Itticheria (2004(1)KLT 767)_ made over to the Rent Control Court and converted as a proceeding under Section 5 for fixation of fair rent. The landlord's case was that the building was let out in 1982 for a monthly rent of Rs.90/- to the tenant for conducting hotel and that in 1980 Perumanna, the locality where the building was situated was RCR.440 & 460 of 2011 -2- a sleepy village with no commercial activity. According to the landlord things have changed and now the locality has developed vastly and that business is progressing at a fast pace. Infrastructure has improved and new roads and buildings have come into existence. The landlord averred that population in the area has increased considerably and the tenants' turn over in business has increased by more than ten times. It was averred that cost of construction of the building presently will be more than two lakhs and if the landlord invests the amount in some other business he will be able to earn at least Rs.4,000/- per mensem. It was averred further that the rent of new buildings in the locality is Rs.10/- per sq. ft. while for the older one it is Rs.5/- per sq. ft. The landlord claimed fixation of fair rent at the rate of Rs.5/- per sq. ft. which will come to Rs.2,160/- per month as the total area of the building covered by the lease is 438 sq. ft. Though schedule of description which was got amended it was brought out that the building consisted of -3- RCR.440 & 460 of 2011 four rooms of which two are pucca rooms and two lean-to rooms in the backyard. By amendment the landlord claimed fixation of fair rent at Rs.2,470/- per mensem calculating the rent for the pucca rooms and the lean-to at the rate of Rs.7/- per sq. ft. The respondent resisted the proceedings filing written statement in the suit contending that the rate of rent claimed is excessive and contending further that if at all fair rent is to be fixed the same shall be on the basis of rental value of the building determined by the local authority on the basis of tax paid by the landlord during the three year period prior to the institution of the proceedings. It was alleged that the proceedings for fixation of fair rent is one of the various litigations which the landlord commenced against the tenant ever since the inception of the tenancy. It was pointed out that the Rent Control Petition seeking eviction on the ground of own occupation is pending. 2. In the first instance the suit was dismissed holding that the same was not maintainable, at the same time RCR.440 & 460 of 2011 -4- entering a finding that the landlord is entitled to get the rent enhanced to Rs.2/- per s.q ft. The landlord preferred appeal. The appellate court held that the suit was maintainable and confirmed the finding of the trial court concerning the fair rent to be fixed. Both the landlord and tenant preferred Second Appeals as SA.995/01 and S.A.384/04. High Court held that the suit is maintainable and remitted the matter back to the trial court for fixation of fair rent after conducting further enquiry. The evidence prior to remand consisted of oral evidence of DW1 and DW2, Exts.A1 to A10, B1 to B2 and C1 and C2. Exts. C1, C2 and C3 report and plan submitted by the Advocate Commissioner in the suit. After remand landlord was further examined. A11 was further marked along with Exts.C1 and C2. Ext.B2 marked earlier was certified copy of the Assessment Register pertaining to the period 1997-98 to 2001-02. 3. The Rent Control Court evaluating the evidence would re-fix the fair rent at Rs.877/- per mensem. In the RCR.440 & 460 of 2011 -5- same order the court below provided that the above basic fair rent will stand increased by 25% over the prevailing rent with effect from 9-4-1996. 4. The tenant preferred an appeal to the Rent Control Appellate Authority against the above order of the Rent Control Court as RCA. No. 103 of 2005. The original landlord Sri. K.E. Aboobacker preferred memorandum of cross objections in the above RCA. The Rent Control Appellate Authority by the impugned judgment has confirmed the fair rent fixed by the Rent Control Court at Rs.877/- per mensem. However, the direction in the order providing for enhancement of the fair rent every five years by 25% was vacated. The memorandum of cross objections filed by the landlords in which upon the death of the original landlord his legal heirs were impleaded was dismissed. 5. In RCR No. 460 of 2011 the ground raised by the tenant is that the rent of Rs.877/- per mensem fixed by the Rent Control Court is on the high side whereas in RCR No. RCR.440 & 460 of 2011 -6- 440 of 2011 filed by the landlords the ground raised is that the rent presently fixed is inadequate. 6. We have heard the submissions of Sri. Nirmal.S. learned counsel for the revision petitioner tenant and also those of Mr. V.T.Madhavanunni, learned counsel for the landlords. Sri. Nirmal submitted that Perumanna is a rural area in the outskirts of Calicut city and therefore the rate presently fixed is excessive. Per contra the argument of the learned counsel for the landlords was that the rate fixed is grossly inadequate. According to him, the rate presently fixed comes to just Rs. 2/- per sq. ft. The total area covered by the lease is 438 sq. ft. 7. Very extensive submissions were addressed before us by the learned counsel on both sides. We have very anxiously considered the submissions. We have reappraised the entire evidence which is available on record consisting of the oral evidence of PW-1, the original landlord, Exts.A1 to A11, B1 and the commissioner's report C-1 and plan C-2. RCR.440 & 460 of 2011 -7- 8. We are of the view that the rate presently fixed which is at the rate of Rs.2/- only per sq. ft. is in no way excessive. The tenant in our opinion cannot have any legitimate grievance regarding the rate presently fixed as fair rent by the two statutory fact finding authorities viz., the Rent Control Court and the Appellate Authority. One of the submissions of Mr. Nirmal was that the rate presently fixed as fair rent for the subject building is likely to prejudice the mind of the court in some other applications for fixation of fair rent in respect of some other buildings in Perumanna and nearby areas. We don't think so. Every rent control petition for fixation of fair rent is to be decided by the authorities under the Rent Control Act according to yardsticks which have been indicated by this court and the Supreme Court by its judgment in Edger Ferus v. Abraham Itticheria, 2004(1) KLT 767 and the corresponding judgment of the Supreme Court. We find that commercial development in the area where the building is situated, RCR.440 & 460 of 2011 -8- prevailing rent rates in the locality and all relevant inputs such as cost of construction of the building, the plinth area available in the building, and all other relevant inputs have been taken into account by the Rent Control Appellate Authority. It is also noticed that the Appellate Authority has taken into account the fact that the tenant is conducting a hotel in the petition schedule building profitably. It was found on the basis of the evidence that the building in question is part of a double storied building situated in Perumanna market on the northern side of Kozhikode - Perumanna Road with direct road access. The amenities and advantages enjoyed by the tenant are noticed. According to us, the finding by the two authorities that Perumanna has now developed as a town area and that the building in question is situated in the heart area of that town is a correct finding. Ext.A3 is a judgment in a suit between the landlord and another tenant occupying a room very near to the petition schedule building. Ext.A5 is the RCR.440 & 460 of 2011 -9- rent deed executed by the tenant in respect of that building in favour of the landlord. Ext.A6 is an agreement executed by another tenant in respect of comparable premises. We are of the view that the fair rent presently fixed is based on evidence and there is no warrant for interference. 9. At the same time, we find force in the submission of the learned counsel for the landlord that the Appellate Authority was not justified in vacating the direction in the Rent Control Court's order that the fair rent fixed will stand enhanced every 5 years by 25%. While we are in agreement with the learned counsel for the tenants that enhancement by 25% every five years is on the high side. We are inclined to modify the judgment of the Appellate Authority by providing that the fair rent at Rs.877/- per mensem presently fixed will stand enhanced by 15% of the prevailing fair rent every 5 years commending from the date of fixation of the fair rent by the Rent Control Court. 10. The result of the above discussion is that RCR No. RCR.440 & 460 of 2011 -10- 46o of 2011 will stand dismissed. RCR. No. 440 of 2011 will stand allowed to the limited extent of restoring the direction with modification that the fair rent presently fixed will stand enhanced every 5 year by 15%. ## **(PIUS C.KURIAKOSE, JUDGE)** **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-